U.S. Supreme Court places hold on same-sex marriage in Virginia

Same-sex marriages in Virginia have to wait - for now.

The national debate over same-sex marriage has come full force to Virginia.

On July 28, a the 4th Circuit Court of Appeals ruled that same-sex marriage bans are unconstitutional, meaning Virginia's voter-approved definition of marriage being between a man and a woman may not be legally enforceable. On August 13, the 4th Circuit refused to stay its decision, meaning that same-sex marriage would begin on August 20. The 4th Circuit Court of Appeals has jurisdiction over Virginia, West Virginia, Maryland, North Carolina and South Carolina. Of those states, only Maryland allowed same-sex marriage at the time of the decision.

Virginia Attorney General Mark Herring, who supports same-sex marriage, nonetheless requested a stay on gay marriage in the state. In a filing to the Supreme Court, the Attorney General's office wrote that until the U.S. Supreme Court weighs in on the issue, too many potential complications could be involved with same-sex marriage if they began immediately.

The U.S. Supreme Court agreed to issue a temporary stay on August 20. Utah has already petitioned the Supreme Court to review a decision by the 10th Circuit U.S. Court of Appeals which overturned that state's ban on same-sex marriage. Unlike in Virginia, Utah state officials are contesting the ruling that its law is unconstitutional. Herring has already conceded that its state ban violates the principles of the U.S. Constitution.

Legal uncertainties remain

Virginia has become part of a nationwide trend in overturning same-sex marriage bans. Currently, 19 states allow same-sex couples to marry. Virginia is one of 31 states that define marriage as between a man and a woman and one of 26 that have banned same-sex marriage by constitutional amendment. Virginia's ban can only be overturned in federal court, which is why the U.S. Supreme Court's decision on same-sex marriage will be so important to same-sex couples in the state.

That decision may be several months away, but it is highly likely the U.S. Supreme Court will weigh in on the issue sometime next term. In 2013, the nation's highest court struck down provisions of the Defense of Marriage Act which prohibited same-sex couples from receiving federal benefits as unconstitutional.

Family law issues for same-sex couples

While it is currently up in the air when, and even if, Virginia same-sex couples can marry, same-sex couples can nonetheless have legal issues - and legal protections - when in a long-term relationship.

For example, it is estimated that there are 2,500 same-sex couples in Virginia currently raising over 4,000 children. Adoption, while perhaps the most rewarding legal action a same-sex couple can take, also comes with certain legal issues that must be resolved. In addition, same-sex couples in a long-term relationship can create cohabitation agreements that can help in the event of a split. Creating a financial and medical power of attorney can help a partner to care for a loved one in the event of a disabling medical condition.

Even if same-sex marriage licenses are issued in the state, many legal issues will remain. For example, a prenuptial agreement is similar to a cohabitation agreement in that it divides assets if a couple divorces. In states that allow same-sex marriage, homosexual marriages end about as frequently as heterosexual marriages, meaning a prenuptial agreement is a good idea no matter the sexual orientation of the couple.

Same-sex couples looking to enter into a cohabitation agreement, adopt children or obtain financial or medical powers of attorney should speak to an experienced family law attorney to discuss their options.

Keywords: Same-sex marriage, divorce, adoption.